Kulkarni v. Actavis Generics
- Paul Engelmayer
- 1:22-cv-05735
- U.S. District Court · Southern District of New York
- 4
In Kulkarni v. Actavis Generics, Judge Engelmayer dismissed the complaint, denied amendment, and gave different terms for claims against different defendants.
Nivedita T. Kulkarni’s failure-to-warn claims were dismissed. Claims against Teva Pharmaceutical Industries Ltd. were dismissed without prejudice, while her other claims were dismissed with prejudice; her request to amend was denied.
What happened
In Nivedita T. Kulkarni v. Actavis Generics, et al., Kulkarni, representing herself, claimed that generic prednisone caused functional myoclonus and that the defendants failed to warn about that side effect under New York law.
A magistrate judge recommended dismissing the claims because the court lacked authority over Teva Pharmaceutical Industries Ltd. and federal law displaced Kulkarni’s other state-law claims. Kulkarni objected, arguing that the prednisone label differed from the brand-name drug’s label, but the district court found that she had repeated an argument already considered and rejected.
Judge Paul A. Engelmayer adopted the recommendation, dismissed the complaint, and denied Kulkarni leave to amend. The claims against Teva Pharmaceutical Industries Ltd. were dismissed without prejudice for lack of personal jurisdiction; the other claims were dismissed with prejudice under the rule governing legally insufficient claims.
The detailed version
- Kulkarni v. Actavis Generics · No. 1:22-cv-05735
- Paul Engelmayer
- Sept. 27, 2023
Background
Nivedita T. Kulkarni brought a diversity action against five affiliated pharmaceutical defendants. She alleged that she developed functional myoclonus after taking generic prednisone and that the drug’s label did not disclose that side effect. Her claims were based on New York’s failure-to-warn law. Kulkarni proceeded without a lawyer.
Three motions were pending. Actavis Generics, Actavis Laboratories FL, Inc., Actavis Laboratories UT, Inc., and Teva North America moved to dismiss for failure to state a legally sufficient claim under Federal Rule of Civil Procedure 12(b)(6). Teva Pharmaceutical Industries Ltd. moved to dismiss for lack of personal jurisdiction and defective service under Rules 12(b)(2) and 12(b)(5). Kulkarni moved for permission to file an amended complaint.
Report and Recommendation and Objection
Magistrate Judge Barbara C. Moses recommended granting the motions to dismiss and denying permission to amend. She recommended dismissal because the court lacked personal jurisdiction over Teva Pharmaceutical Industries Ltd. and because federal law preempted, or displaced, Kulkarni’s remaining state-law claims. Kulkarni objected only to the finding that her state-law claims were preempted. She argued that the defendants’ prednisone label differed from the label for the reference-listed drug and therefore was misbranded under federal law.
The district court found that this objection repeated an argument Kulkarni had already made before Judge Moses. It therefore reviewed the challenged portion of the recommendation for clear error and found none.
Ruling
The court accepted and adopted Judge Moses’s Report and Recommendation in its entirety. It granted the motions to dismiss and denied Kulkarni leave to amend as futile. The court dismissed Kulkarni’s claims against Teva Pharmaceutical Industries Ltd. under Rule 12(b)(2) for lack of personal jurisdiction, and that dismissal was without prejudice. It dismissed Kulkarni’s other claims under Rule 12(b)(6), and those dismissals were with prejudice. The court directed the clerk to close the case and mail Kulkarni a copy of the decision.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.